Arbeit macht frei: - Fredrick Töben

IS THE LEGAL SYSTEM OUT OF CONTROL?
by Ian Wilson LL.B.
In this article I will discuss two books which argue that the American legal
system – and by implication the common law systems in other parts of the
world – are out of control. The two books are Catherine Crier, ‘The Case
Against Lawyers: How Lawyers, Politicians and Bureaucrats Have Turned
the Law into an Instrument of Tyranny – and What We as Citizens Have
to Do About It’ (Broadway Books, New York, 2002) and Philip K.
Howard, ‘The Death of Common Sense: How Law is Suffocating
America’, (Warner Books 1994).
Crier argues that the rule of law ‘has become a source of power and
influence, not liberty and justice’ (p.5). First off, she laments about the
massive awards delivered in some celebrated American tort/personal
injury cases – one accident at an amusement park that led to a girl dying of
burns injuries – led to an award of US$1.2 billion. Excessive she says
(p.9). Tobacco litigation is in her opinion ‘ridiculous’ for illegal drug users
go to prison but ‘cigarette addicts get money instead’ (p.10).
Worse: ‘Lawyers are making out like bandits as we litigate the most inane
conflicts’ (p.13). These include our arguments over ‘potential’ problems in
products. Indeed, Crier cites a book by Norman Augustine, ‘Augustine’s
Laws’, which allegedly shows that the more lawyers a country has, the
greater the drain upon the country’s economic growth (p.14).
I am not impressed by these arguments as some type of critique of
lawyers. We can grant that the accident case yielding $1.2 billion is
excessive but only because we have come to value money over a life and
are quite prepared to put a low monetary value on a life. The comparison
between cigarette smokers and illegal drug users does not hold because
illegal drug users have not been able to promote their products through
manipulative advertisements and, after all, tobacco is legal, not illegal.
And finally Crier’s attitude towards lawyers seems to me ‘over the top’.
She quotes Shakespeare in Henry VI: ‘First thing we do is kill all the
lawyers’ and says ‘we applaud this suggestion today’ (p.180).
The reason apparently is that lawyers ‘now dominate our government’ and
‘ have taken their ‘rightful’ place at the helm, issuing and executing orders
in the name of stability over anarchy and structure over freedom’ (p.181).
Philip K. Howard in ‘The Death of Common Sense’, an earlier published
book, covers much the same ground as Crier’s ‘The Case Against
Lawyers’. In my opinion it is a better argued book because Howard begins
his discussion with the real legal problem of modern society: the massive
bureaucracy and regulations and laws that run modern life, crush freedom
and individual creativity, resulting in what sociologist Max Weber
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